When do solicitors fail to uphold the rule of law?
The SRA and SDT must establish a clear definition of principle 1, so that solicitors aren't punished twice in different jurisdictions for the same act, argues Susanna Heley
There should be nothing objectionable about principle 1 of the Solicitors Regulation Authority (SRA) Principles 2011. It reads: 'You must uphold the rule of law and the proper administration of justice.'
It should be entirely uncontroversial that solicitors, as officers of the court, should be concerned with the proper administration of justice and the rule of law in civilised society. But that rather raises the question of what, precisely, we mean by 'the rule of law' and 'the proper administration of justice'. These are two distinct concepts which need to be examined and defined: it is not right to suggest that the breach of a law (any law) automatically amounts to a failure to uphold the rule of law.Part of the role of solicitors is to challenge the issue and interpretation of rules and laws which are unjust or have been applied or interpreted unreasonably. Is challenging an obviously unjust law failing to uphold the rule of law? What of breaking the law? Is speeding a failure to uphold the rule of law? What of illegal parking? What of civil liability? Is negligence a failure to uphold the rule of law? Breach of confidence?
If failing to uphold the rule of law is as simple as acting in breach of the law, why do we need the principle at all? Is it not simply a way in which solicitors can be punished twice in different jurisdictions for the same act?
Rule of law
Online searches for 'rule of law' reveal such definitions as 'The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes' (the Oxford English Dictionary via Wikipedia) and 'The principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced; the principle of government by law'
These sorts of definitions
make a great deal more sense. Upholding the rule of law is about holding all to the same standards. We don't need a principle which tells us to obey the law; we have to do that anyway and the law provides its own punishments and remedies for failing to do so.
I know that the SRA has shown an increasing tendency to allege breaches of principle 1, based on the commission of either a criminal or civil wrong. That tendency needs to be carefully reviewed and the meaning of principle 1 needs to be properly clarified.
The recent case of SRA v Olujinmi (case no. 11442-2015) involved a solicitor who had failed to give a breath sample.
He had been convicted in the criminal courts and fined £675. He self-reported the conviction to the SRA and was referred to the Solicitors Disciplinary Tribunal (SDT), where the tribunal would have fined him £5,000 but for the fact that he was on state benefits. In taking account of his means, the tribunal reduced the fine to £2,500. The basis of the SDT fine was principle 1. The tribunal rejected the allegations that the solicitor had acted without integrity or brought the profession into disrepute.
I know nothing of the case beyond what is in the published findings; however, it is apparent that the tribunal treated the fact of the conviction as amounting to a breach of principle 1. There is no discussion about what the 'rule of law' or the 'proper administration of justice' means.
Intellectually, it is hard to reconcile a fine from the criminal courts of £675 (coupled with a driving ban, victim surcharge of £68, and costs of £300) with a fine from a professional tribunal of £2,500 - almost four times the level of the fine levied for the original offence.
I hope that the conviction in this case was treated as a breach of principle 1 because of the nature of the offence, and that the case is not suggestive of a general approach by either the SRA or the tribunal of treating any criminal conviction as a breach of principle 1. To do so would, in my view, misinterpret and devalue the important constitutional principles which principle 1 should protect.